One Ga., Inc. v. Carr

• Decision Date: 28 April 2022
• Docket Number: CIVIL ACTION FILE NO. 1:22-CV-1130-MHC
• Citation: 601 F.Supp.3d 1291
• Parties: ONE GEORGIA, INC.; AFG Group Inc. d/b/a Abrams for Governor; and Stacey Y. Abrams, Plaintiffs, v. Christopher M. CARR, in his official capacity as the Attorney General of Georgia; James D. Kreyenbuhl, in his official capacity as Chairman of the Georgia Government Transparency and Campaign Finance Commission ; Eric L. Barnum, in his official capacity as Vice Chair of the Georgia Government Transparency and Campaign Finance Commissions ; Robert A. Watts, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission ; Darryl Hicks, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission. Rick Thompson, capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; David Emadi, in his official capacity as Executive Secretary of the Georgia Transparency and Campaign Finance Commission; and Georgians First Leadership Committee, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

601 F.Supp.3d 1291

ONE GEORGIA, INC.; AFG Group Inc. d/b/a Abrams for Governor; and Stacey Y. Abrams, Plaintiffs,

v.Christopher M. CARR, in his official capacity as the Attorney General of Georgia; James D. Kreyenbuhl, in his official capacity as Chairman of the Georgia Government Transparency and Campaign Finance Commission ; Eric L. Barnum, in his official capacity as Vice Chair of the Georgia Government Transparency and Campaign Finance Commissions ; Robert A. Watts, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission ; Darryl Hicks, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission. Rick Thompson, capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; David Emadi, in his official capacity as Executive Secretary of the Georgia Transparency and Campaign Finance Commission; and Georgians First Leadership Committee, Inc., Defendants.

CIVIL ACTION FILE NO. 1:22-CV-1130-MHC

United States District Court, N.D. Georgia, Atlanta Division.

Signed April 28, 2022

Adam Martin Sparks, Joyce Gist Lewis, Krevolin & Horst, LLC, Atlanta, GA, for Plaintiffs.

Elizabeth Marie Wilson Vaughan, Elizabeth T. Young, Department of Law - Division 5, Atlanta, GA, for Defendants Christopher M. Carr, James D. Kreyenbuhl, Eric L. Barnum, Darryl Hicks, Rick Thompson, Robert A. Watts, David Emadi.

ORDER

MARK H. COHEN, United States District Judge

This case comes before the Court on Plaintiffs’ Second Motion for Preliminary Injunction ("Pls.’ Second Mot. for Prelim. Inj.") [Doc. 51].

I. BACKGROUND

A. Introduction

This is the third iteration of a series of constitutional challenges to O.C.G.A. § 21-5-34.2, which became effective on July 1, 2021, and has been referred to in this litigation as the "LC Statute." The LC Statute provides for the creation of a "leadership committee" which "may accept contributions or make expenditures for the purpose of affecting the outcome of any election or advocating for the election or defeat of any candidate ...." O.C.G.A. § 21-5-34.2(d). A "leadership committee" is defined as:

a committee, corporation, or organization chaired by the Governor, the Lieutenant Governor, the nominee of a political party for Governor selected in a primary election in the year in which he or she is nominated, or the nominee of a political party for Lieutenant Governor selected in a primary election in the year in which he or she is nominated. Such term shall also mean up to two political action committees designated by the majority caucus of the House of Representatives, the minority caucus of the House of Representatives, the majority caucus of the Senate, and the minority caucus of the Senate. No person may chair more than one leadership committee.

O.C.G.A. § 21-5-34.2(a).

A leadership committee must register with the Georgia Government Transparency and Campaign Finance Commission (the "Commission") within ten days of beginning to accept contributions and must disclose contributions or expenditures in excess of $500.00. Id. § 21-5-34.2(e). A key component of the LC Statute is that "[t]he contribution limits in Code Section 21-5-41 shall not apply to contributions to a leadership committee or expenditures made by a leadership committee in support of a candidate or a group of named candidates," meaning that a leadership committee may accept contributions in any amount and is not bound by the current monetary limitation of $7,600 imposed upon candidates for statewide office and their campaign committees.¹

The only individual candidates for statewide office who are authorized to form leadership committees and can raise unlimited amounts of contributions under the LC Statute are the Governor, the Lieutenant Governor, and the nominees of a political party for those two offices who are chosen in a primary election. Id. § 21-5-34.2(a). Consequently, aside from Governor Brian Kemp and Lieutenant Governor Geoff Duncan, the LC Statute provides no other statewide officeholder or candidate for statewide office with the opportunity to form a leadership committee prior to the primary election.² On July 8, 2021, Defendant Georgians First Leadership Committee, Inc. ("Georgians First") was established with Governor Kemp as its chairperson. See Perdue v. Kemp, 1:22-CV-0053-MHC, 584 F.Supp.3d 1310, 1315–16 (N.D. Ga. Feb. 7, 2022). What this means is that Governor Kemp, as the incumbent, is able to raise unlimited funds through Georgians First while every other candidate for Governor, whether running in the Republican or Democratic Primary, is limited to the $7,600 per individual contribution limit contained in O.C.G.A. § 21-5-41, until such candidate is chosen as the nominee of one of the political parties in the primary election.

B. Perdue v. Kemp

On December 6, 2021, former United States Senator David Perdue ("Perdue") announced his intent to run for Governor of Georgia. Id. One month later, Perdue and his campaign committee filed a complaint challenging the constitutionality of the LC Statute because it permitted Governor Kemp, as the sitting Governor, to raise and spend unlimited funds through Georgians First in the Republican Party primary election for Governor while Perdue could raise only a maximum of $7,600 from an individual contributor for the same primary election. Id.

On February 7, 2022, this Court found that Perdue was likely to succeed on the merits of his claim that the LC Statute violated his rights under the First Amendment because (1) the LC Statute effectively negated the contribution limit imposed upon all candidates for Governor in the primary election for just one candidate, Governor Kemp, through his leadership committee, Georgians First; (2) the state failed to demonstrate a sufficiently important state interest to support such a distinction; and (3) the statute was not closely drawn to serve any such purported interest. Id. at 1321–28. The Court also found that Perdue established irreparable injury, the balance of harms favored Perdue, and the public interest supported the entry of the preliminary injunction. Id. at 1327–29. The Court preliminarily enjoined Georgians First

from expending funds beginning on the date of this Order (1) for the purpose of advocating for the re-election of Governor Kemp or the defeat of an opponent of Governor Kemp through the 2022 primary election and 2022 primary runoff election, if any there be, or (2) to defray ordinary and necessary expenses incurred in connection with Governor Kemp's campaign for re-election as Governor of Georgia though the 2022 primary election and 2022 primary runoff election, if any there be, until further Order of this Court.

Id. at 1329. The preliminary injunction order stated that it did not prevent Georgians First from continuing to receive funds and make expenditures "in support of public officials other than Governor Kemp" nor make unlawful any expenditures made prior to the Court's Order to promote Governor Kemp's reelection or the defeat of an opponent of Governor Kemp. Id. The injunction was silent with respect to Georgians First's potential receipt of funds prior to the primary election for use in support of Governor Kemp or in opposition to one of his opponents in the general election.

C. One Georgia v. Carr, Phase One

One Georgia, Inc. ("One Georgia") is a leadership committee chaired by Stacey Y. Abrams ("Abrams"), who is the only candidate to qualify for the Democratic Party's primary election for Governor. Verified Compl. ("Compl.") [Doc. 1] ¶¶ 13, 15, 46, 51; Aff. of Nikema Williams (Mar. 15, 2022) [Doc. 1-2] ¶ 7. One Georgia began accepting contributions once the qualifying period for candidacy for public office ended on March 11, 2022. Id. ¶ 51. Although One Georgia registered through the Commission's online portal and received confirmation of its registration, it attempted to obtain confirmation from the Commission that it could operate as a leadership committee under the LC Statute. Id. ¶¶ 52-54. The Commission refused to give that assurance because Abrams has not yet been nominated as the Democratic Party's nominee for Governor in the primary election. Email from Robert Lane to Adam M. Sparks (Mar. 17, 2022 at 12:59 AM) [Doc. 1-3 at 4]. Based upon the threat of potential enforcement proceedings by the Commission, One Georgia has not spent any funds in its possession.³ Compl. ¶ 56.

Plaintiffs brought their lawsuit against the Attorney General of Georgia and the members of the Commission (collectively, the "State Defendants") challenging the constitutionality of the LC Statute for many of the same reasons previously raised by the plaintiffs in Perdue v. Kemp. Compl. ¶¶ 9-12, 73-75. However, rather than name Georgians First as a defendant and seek to have this Court restrict Governor Kemp's ability to continue to raise unlimited contributions through Georgians First until and unless he is selected in the primary election as the Republican Party's nominee for Governor, Plaintiffs instead sought to have this Court enjoin the Commission from taking any administrative action in the event One Georgia continued to raise funds as Abrams's leadership committee prior to the primary election. Pls.’ Mot. for Prelim. Inj. [Doc. 9].

On April 14, 2022, this Court issued an Order which stated that "as did the plaintiffs in Perdue v. Kemp, Plaintiffs in this case are likely to be able to show that the LC Statute as applied is an impermissible infringement of Plaintiffs’ First Amendment rights." April 14, 2022, Order [Doc. 45] at 32. However, the Court denied Plaintiffs’ motion for a preliminary injunction directed solely to the Commission because (1) the injunctive relief sought would have required the Court to find that Abrams already is the Democratic Party nominee for Governor; (2) Georgia law is clear that political party candidates for public office are nominated in a primary (and makes no exceptions depending upon...